FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : SYNERGY SECURITY SOLUTIONS LIMITED (REPRESENTED BY TERENCE J. O' SULLIVAN SOLICITORS) - AND - GERARD REILLY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal Of Adjudication Officer Decision No(s): r-158592-pw-15
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision No r-158592-pw-15 made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 24th January 2017 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Synergy Security Solutions Ltd against the Decision of an Adjudication Officer r-158592-pw-15/EOS under the Payment of Wages Act 1991. In this Determination the parties are referred to as they were at first instance, hence Mr Reilly is referred to as ‘the Complainant’ and Synergy Security Solutions Ltd is referred to as ‘the Respondent’.
The Adjudication Officer found that the Respondent had failed to discharge the Complainant’s minimum notice entitlements and had also failed to discharge outstanding annual leave and public holiday entitlements. The Adjudication Officer ordered that an amount of €1,892 be paid to the Complainant in respect of four weeks minimum notice entitlements and an amount of €247 be paid in respect of outstanding annual leave and public holiday entitlements.
On 27 July 2015, the Complainant lodged a number of complaints, including a complaint under the Payment of Wages Act 1991, with the Workplace Relations Commission.
The Respondent appealed the Adjudication Officer Decision to this Court on 15 September 2016. The appeal came before the Court on 24 January 2017.
Background
The Complainant’s employment commenced on 1 August 2008. He was employed as a security officer and was assigned by his employer to work at the Bus Éireann depot in Dundalk where his employer operated a security services contract for Bus Éireann. Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131) (hereinafter ‘the Regulations’), the Complainant’s employment transferred to the Respondent company with effect from 28February 2015.
On 26 February 2015, following a period of sick leave for approximately two months, the Complainant returned to work and learned that the Bus Éireann security services contract was due to transfer to the Respondent company two days later, with effect from 28 February 2015. The Complainant had no knowledge at all of the impending transfer until his return from sick leave.
The Complainant contacted the Respondent company prior to the transfer date who advised him that they had never been made aware by the transferor that he was employed on the security services contact and that they had received no details on him whatsoever throughout the due diligence and information transfer processes that took place in the context of the transfer of the business. The Complainant was given to understand from the Respondent that as far as it was concerned the Complainant remained an employee of the transferor and was not part of the transfer of the business to the Respondent. The Complainant’s final day of work was 27 February 2015.
The Complainant disputed his dismissal, which was the subject of separate proceedings under the Unfair Dismissals Act 1977 – 2015.
Summary of the Complainant’s Case
Des Courtney, SIPTU, on behalf of the Complainant put forward the following points:-
- 1.The Complainant became an employee of the Respondent pursuant to the Regulations by operation of law on 28 February 2015.
- 2.The Complainant was entitled to transfer to the Respondent’s employment. The Complainant was prevented from transferring by the Respondent and this amounted to an unfair dismissal.
3.The Complainant was entitled to minimum notice in connection with the termination of his employment. He was not permitted to work during the notice period, nor did he receive payment in lieu of notice on the termination of his employment.
4.Had the Complainant been permitted to work during his notice period, which he should have been, he would have accrued an entitlement to 1.6 days annual leave and he would have been entitled to benefit for the public holiday on 17 March 2015. The Complainant was not paid for these annual leave and public holiday entitlements.
Summary of the Respondent’s Case
On behalf of the Respondent, Mr. Cian Cotter, B.L., instructed by Terence J. O’Sullivan Solicitors, on behalf of the Respondent, outlined the Respondent’s case as follows:-
- 1.The Respondent states that it could not have made good its obligations to the Complainant as it was completely unaware of the Complainant’s existence due to the omission by Noonans in respect of the Complainant’s details.
- 2.The Respondent states that the Complainant did not transfer to its employment, that he took no steps to take up employment with the Respondent Company, that he did not wish to transfer to the Respondent and that he had sought his P45.
- 3.The Respondent states that its position was that the Complainant had remained in the employment of Noonans.
- 4.The Respondent denies any obligations to the Complainant.
The Law
The Payment of Wages Act 1991 defines wages at Section 1 in the following terms:-
- “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
Section 5 of the Act in relevant part states:-
- 5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
- (a) any act or omission of the employee, or
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
unless—- (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—- (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
(II) in any other case, notice in writing of the existence and effect of the term,
and
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and
(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services. - (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
- (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
“Where—
(a)the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” - (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
The Court has had the benefit of substantial written and oral submissions and oral evidence in this case.
In this case, the Court must firstly determine whether entitlements in respect of minimum notice, annual leave and public holidays arise in respect of the Complainant. Where such entitlements arise and have not been discharged by the Respondent in full then the failure by the Respondent to do so can amount to an unlawful deduction in breach of Section 5 of this Act.
In separate but related proceedings (UD/16/96), the Court found that the Complainant’s employment had, pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131), transferred to the Respondent with effect from 28thFebruary 2015. The Court further found that the Respondent had failed to meet its obligations to employ the Complainant and that this amounted to a dismissal of the Complainant from his employment. In the absence of substantial grounds justifying the dismissal, the Court found that the dismissal was unfair.
Minimum Notice
- Annual Leave & Public Holidays
Mr Courtney for the Complainant confirmed that the claim in respect of annual leave and public holidays was based on the premise that had the Complainant been facilitated with working during the notice period he would have accrued annual leave entitlement of 1.66 days and he would have been entitled to benefit for the public holiday on 17 March 2015. Essentially the claim is grounded on the Complainant having notionally worked for four weeks.
The Court notes that the Complainant worked 16 hours in the period from 19 December 2014 until 28 February 2015 and was not given annual leave in respect of that accrual. Having regard to the provisions of Section 19 of Part III of the Organisation of Working Time Act 1997, the Court is satisfied that the Complainant had an annual leave entitlement to 8% of the 16 hours worked (this claim referred to a period prior to the enactment of Section 86(1) of the Workplace Relations Act 2015). Therefore the Court finds that the Complainant is therefore entitled to an annual leave payment of €13.76.
In circumstances where the Complainant’s final day of work was 27 February 2015, and he did not work up to the week ending on the day before the March public holiday, therefore in accordance with Section 23 (2) of the 1997 Act, the Court finds that the Complainant has no entitlement to payment for the public holiday on 17 March 2015. The Court accordingly finds that the claim in respect of payment for the public holiday fails.
Determination
The Court finds that the Complainant’s claims are well founded in part. The Court orders the Respondent to pay the Complainant the sum of €1,680.00 in respect of four weeks minimum notice and the sum of €13.76 in respect of annual leave.
The Decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
JD______________________
27 January 2016Caroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.